Grant and Grant

FAMILY COURT OF AUSTRALIA

GRANT & GRANT

[2010] FamCA 534

FAMILY LAW - CHILDREN - Parental responsibility - With whom a child spends time - Whether the children should spend any time with the father and if so, under what conditions and how frequently - Family violence perpetrated by the father - Father’s parenting capacity and psychological state - Risk of harm - Independent Children’s Lawyer seeks that final orders be made for the father to spend no time with the children - Parties agree that orders be made for the children to spend supervised time - Interim orders made for the children to spend supervised time with the father, with the orders to be reviewed in six months

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
H & K [2001] FamCA 687
Moose v Moose (2008) FLC 93-375
W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Grant

RESPONDENT:

Ms Grant

INDEPENDENT CHILDREN’S LAWYER:

Ms O'Rourke, Legal Aid NSW

FILE NUMBER:

NCC

1053

2009

DATE DELIVERED:

2 July 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

8, 9, and 10 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Mr Bates

SOLICITOR FOR THE RESPONDENT:

Ms Garrick, Barbara Garrick & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O'Rourke, Legal Aid NSW

Orders

Pending Further Order

All former parenting orders in respect of the children L, born … May 2001, and G, born … September 2002, (“the children”) are discharged.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the children spend supervised time with the father upon the following conditions:
(a)The supervisor shall be the staff or the nominee of the organisation known as “W Organisation”.
(b)The supervised time shall occur for a period of two hours, no less frequently than once every four weeks and no more frequently than once every two weeks, and will occur at the times appointed by the supervisor in the absence of agreement between the parties.
(c)The venue at which the time is to be spent by the children with the father shall be designated by the supervisor.
(d)The father shall pay the costs of the supervisor.
(e)The mother shall cause the delivery of the child to, and the collection of the child from, the designated venue at the commencement and conclusion of the time spent by the child with the father.
For the purposes of implementation of Order 4 hereof:
(a)Within 7 days hereof, each party shall contact “W Organisation” to arrange an intake assessment and thereafter comply with all reasonable requests, directions, and policies of that organisation and the supervisor.
(b)Leave is granted to the wife to furnish to “W Organisation”:
(i)A sealed copy of these orders.
(ii)A copy of the Family Report authored by Ms K dated 3 May 2010.
(iii)A copy of the expert report of Dr R dated 9 February 2010.
Each of the parties shall take all reasonable steps to ensure that the children communicate with the father each Monday, between 7.00pm and 8.00pm, and for that purpose the father shall telephone the children on the mother’s landline telephone, and the mother shall ensure that the children are able to receive the father’s calls at that time and encourage them to each speak with the father.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
The mother shall notify the father of any medical emergency, illness or injury suffered by the children warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.
The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms.
Each party shall forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
The father shall forthwith enrol himself to commence, participate in, and complete a post-separation parenting program, subject to the approval of that program by the Family Consultant, Ms K.
The father shall continue his therapeutic relationship with Dr H and shall:
(a) Furnish to Dr H:
(i)A sealed copy of these orders.
(ii)A copy of the expert report of Dr R dated 9 February 2010.
(b)Waive confidentiality, and irrevocably authorise Dr H, in writing to:
(i)Consult with the Family Consultant, Independent Children’s Lawyer, and the mother’s solicitor, and
(ii)Make files, notes, reports, and documents available for inspection and production on subpoena, by the Family Consultant, Independent Children’s Lawyer and parties.
Within 14 days, the father shall do all such things and sign all documents as may be necessary to commence therapeutic treatment with a psychologist, for as long as is deemed necessary by that psychologist, and for that purpose:
(a)The father shall meet any cost of such treatment not covered by rebate or insurance.
(b)The father shall inform the Independent Children’s Lawyer and the Family Consultant of the name and contact details of that psychologist.
(c)The father shall furnish to the psychologist:
(i)A sealed copy of these orders.
(ii)A copy of the Family Report authored by Ms K dated 3 May 2010.
(iii)A copy of the expert report of Dr R dated 9 February 2010.
(d)The father shall waive confidentiality, and irrevocably authorise the psychologist, in writing to:
(i)Consult with the Family Consultant, and
(ii)Make files, notes, reports, and documents available for inspection and production on subpoena, by the Family Consultant, Independent Children’s Lawyer and parties.
The Family Consultant, Ms K, shall furnish the Court with an updated Family Report pursuant to s 62G of the Family Law Act 1975 by Friday 14 January 2011.
The matter is adjourned to 9.30 am on Friday 28 January 2011 before Justice Austin for further directions.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Grant & Grant is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1053 of 2009

MR GRANT

Applicant

And

MS GRANT

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

These proceedings require determination of proper parenting orders for the two children born to the marriage of the applicant father and respondent mother.
The children are L, born in May 2001, and G, born in September 2002 (“the children”).
The mother has always contended that parental responsibility for the children should be allocated solely to her, and that the children should live with her. Her ideas about the children spending time and communicating with the father have evolved, largely because of her justified concerns about the father’s stability.
The father has been emotionally labile in his dealings with the mother since their separation, and was so in the latter period of their cohabitation. That is probably not surprising in view of the misfortune he has endured in his life. Apart from suffering the loss of his marriage and deterioration of his relationship with the children, he has been sexually assaulted, bashed, and bankrupted – all within the last few years. That kind of misfortune would test the emotional fortitude of any person. His presentation to the two Family Consultants, the single expert psychiatrist, and the Court confirmed his emotional fragility.
Unfortunately, the father’s condition has clouded his past perception about a proper parenting outcome for the children. Initially he proposed that the children live with him rather than the mother, but he then later recognised that the children should live with the mother.
By the conclusion of the trial the father had sensibly and responsibly come to realise from the evidence he had heard that the proper outcome was for the children to spend time with him only in a supervised setting. The mother and father both contemplated the prospect of that regime of supervised time applying for only a trial period rather than permanently, although their preferences for finality and impermanence differed. The father also consented to the allocation of parental responsibility for the children solely to the mother.
Despite the belated, but laudable, concurrence of the parties, the Independent Children’s Lawyer remained opposed to an outcome of that sort. She pressed the Court for final orders providing that the children have no interaction of any sort with the father for the remainder of their minority. The trial therefore concluded with greater disparity between the parents and the Independent Children’s Lawyer than between the parents themselves.

Background Facts

The parties began a relationship on 24 April 1998 and commenced cohabitation in April 1999.[1]
[1] Mother’s affidavit, par 1; Father’s affidavit, par 5
Their oldest child, L, was born in May 2001.[2] The youngest child, G, was born in September 2002.[3] The children are now aged 9 and 7 years respectively.
[2] Father’s affidavit, par 8
[3] Father’s affidavit, par 9
The parties married in December 2002.[4]
[4] Father’s affidavit, par 10; Mother’s affidavit, pars 4, 21
The parties separated on 24 November 2007,[5] although the parties lived within the same home until the mother vacated that residence with the children on 10 December 2007.[6] The children have lived with the mother continuously ever since.
[5] Father’s affidavit, par 19; Mother’s affidavit, par 5
[6] Mother’s affidavit, par 6
On 11 December 2007, the day following the mother’s departure from the former matrimonial home, the mother attended upon police to make a statement about her recent treatment by the father.[7] As a consequence of that complaint an apprehended violence order was made against the father in January 2008 for a period of 12 months.[8]
[7] Mother’s affidavit, par 59
[8] Mother’s affidavit, par 66
The parties attended a mediation session in May 2008, but they failed to reach agreement about proper parenting orders at that time.[9]
[9] Father’s affidavit, par 31
The proceedings were commenced by the father on 30 April 2009.[10] For the period between separation and the commencement of the proceedings the parties were able to satisfactorily negotiate the time spent by the children with the father and their communication with him. The father even regards the relationship following separation to have been reasonably amicable.[11] However, from at least early 2009, the children have spent very little time with the father and had very little communication with him. The mother would not permit the children to spend unsupervised time with the father and she was no longer prepared to act as the supervisor.
[10] Mother’s affidavit, par 75
[11] Father’s affidavit, par 27
No interim parenting orders have been made in the proceedings. Because of the mother’s concerns about the father’s stability, which concerns were corroborated by the first Family Consultant in her initial reports,[12] the Court was not prepared to mandate the children spending time with the father in the absence of professional supervision. The father declined to permit the children to see him under supervised conditions, and as a consequence of the father’s attitude, apart from one occasion in June 2009 when the father saw G in the company of the mother, the children have not spent any time with the father since March 2009.
[12] Exhibits ICL1 and ICL2
The trial commenced pursuant to Rule 16.08 on 7 December 2009, at which time some short evidence was taken from the parties and the first Family Consultant’s reports were tendered in evidence as exhibits. Further procedural orders were made in readiness for the resumption of the trial on 8 June 2010. The evidence and submissions were concluded on 10 June 2010 and judgment was reserved.

Proposal and Evidence of the Mother

The mother’s consistent proposal was that parental responsibility for the children should be allocated solely to her, and that the children should live with her.
She also consistently proposed, but for a short period during the trial, that the children should spend supervised time with the father and communicate with him by telephone. Although the mother suggested for a period during the trial that the children should not spend any time with the father at all,[13] that position was explained – the mother was given to believe that the Contact Centre she had proposed for the implementation of the supervised time would not offer supervision on an indefinite basis and would not therefore accept the family for supervision purposes. When the mother was satisfied that alternate arrangements could be made with an alternate supervisory agency she reverted to her initial position.
[13] Exhibit M2
The final Minute of Orders proposed by the mother, which was tendered as an exhibit,[14] reflected those proposals.
[14] Exhibit M10
In support of her position, the mother relied upon her affidavit filed on 21 May 2010.

Proposal and Evidence of the Father

The litigation and the trial was an arduous process for the father particularly. He desperately wanted to stabilise his relationship with the children but, in the absence of legal advice and representation, had difficulty conceptualising the important issues in the case.
Ultimately the father was drawn to the conclusion that he should agree with the mother’s proposal that parental responsibility for the children should be allocated solely to the mother, and that they should live with her.
The father also finally agreed with the mother’s proposal that the children should spend supervised time with him, and communicate with him weekly by telephone.
The father agreed to the orders proposed by the mother in her Minute of Orders. However, the father wanted the regime of supervised time to be imposed only as an interim measure, and not permanently. He volunteered that an interim time frame of 12 months was acceptable to him. As a fall-back position, the father was prepared to accept the supervised time regime as a permanent arrangement in preference to the children spending no time with him at all. The mother’s preference was for the supervised time to be a permanent arrangement, but in the event of the Court concluding that it ought only be temporary, the mother thought that a period of 6 months was advisable.
The father relied upon his affidavit filed on 12 February 2010, but that had been in circumstances where he had commenced the trial asserting that the children should spend substantial and significant time with him on an unsupervised basis.

Proposal of the Independent Children’s Lawyer

The Independent Children’s Lawyer did not disclose to the Court any preliminary views either prior to or during the course of the trial.
In final submissions the Independent Children’s Lawyer tendered a Minute of Orders proposed by her.[15] Significantly, that proposal made no provision for the children to spend any time with the father. When that was explored with her, the Independent Children’s Lawyer confirmed that the absence of any such order was intended to mean that there be no time spent by the children with the father, under any circumstances, and no telephone communication by them with him.
[15] Exhibit ICL5
Notwithstanding the tender ages of the children, it was confirmed by the Independent Children’s Lawyer that she intended that regime to apply on a final basis. When the option of interim orders was raised with her as a possibility, to test the success of supervised time between the children and the father, the Independent Children’s Lawyer rebuked the suggestion. She saw no reason to depart from the convention of determining the litigation with final orders.
The only interaction between the children and the father countenanced by the Independent Children’s Lawyer was the exchange of letters, cards, gifts, and photographs.[16]
[16] Exhibit ICL5, Orders 5-6
The submissions of the Independent Children’s Lawyer were primarily premised on the evidence of the two Family Consultants and the single expert psychiatrist.

Evidence of the Family Consultants

The pervasive issues in this litigation have proven to be the perpetration of family violence by the father and his unstable psychological condition, which are likely to be interrelated.
The proceedings were commenced on 30 April 2009 and within weeks the parties participated in a Child Dispute Conference with the first appointed Family Consultant, Ms C. That conference occurred on 19 May 2009.
At that point in time it was noted that there was no dispute that the children enjoyed spending time with the father. The mother’s only concerns were the father’s propensity for violence and his unpredictable behaviour.[17] For those reasons, the mother desired that the time spent by the children with the father be supervised. The father flatly refused to allow the children to spend time with him if it was the subject of supervision.[18]
[17] Exhibit ICL1, page 1
[18] Exhibit ICL1, page 1
The father was then in denial about the past family violence. The father acknowledged that he had been diagnosed with depression, for which he was then receiving therapy, but exhibited frustration with external factors rather than his impaired capacity to deal with the stressors in his life. The Family Consultant entertained similar fears to the mother that the father’s demeanour and unpredictability warranted the children’s time with him being supervised.[19] The Family Consultant recommended that the father continue receiving therapy and that a further report be sought by the Court concerning the risk of harm that might be occasioned to the children through them spending unsupervised time with the father.[20]
[19] Exhibit ICL1, page 1
[20] Exhibit ICL1, page 2
Such a further report was commissioned by the Court. Ms C prepared a Family Report on 16 July 2009 which was limited to issues arising from her perusal of material then produced on subpoena.[21] Ms C inspected material produced on subpoena by the New South Wales Department of Human Services, New South Wales Police, and the psychologist affording treatment to the father. The concerns of the Family Consultant were amplified and she recommended the continuation of supervision of the time spent by the children with the father.[22]
[21] Exhibit ICL2
[22] Exhibit ICL2, pars 29, 32 and 33
Although Ms C was called to give evidence at the trial, the utility of that evidence was extremely restricted since she had not consulted with the parties or the children after the initial Child Dispute Conference conducted by her on 19 May 2009.
The role of Family Consultant to the family was later assumed from Ms C by Ms K. Pursuant to an order made by the Court on 7 December 2009, Ms K prepared an updated Family Report. That report was annexed to the Family Consultant’s affidavit sworn on 3 May 2010, which was released to the parties and the Independent Children’s Lawyer. The updated report comprehensively addressed the primary issues of family violence and the father’s psychological state.

The Family Consultant interviewed the father and observed him with the children on 16 April 2010. At that time the father presented in a manner which the Family Consultant described as “tense and at times…highly angry”.[23] The father even described himself as “a very, very fucking angry man”.[24] At times he was unable to control his anger in the presence of the Family Consultant.[25] The father was then still stridently resistant to the idea of the children’s time with him being supervised.[26] The mother’s position remained eminently reasonable – she was still prepared for the children to spend time with the father, provided that such interaction occurred in a safe environment and the father’s behaviour was predictable and rational.[27] The manner in which the father had presented to the Family Consultant simply served to corroborate the mother’s apprehension about the father’s unpredictability and irrationality.
[23] Family Report, 3 May 2010, par 14
[24] Family Report, 3 May 2010, par 17
[25] Family Report, 3 May 2010, pars 18, 24, 28, 30, 31, 34, 36 and 37
[26] Family Report, 3 May 2010, par 37
[27] Family Report, 3 May 2010, par 52
The Family Consultant was greatly concerned about the father’s extreme anger and the lack of insight that he demonstrated in failing to appreciate the effect of his demeanour and conduct upon the children and the mother.[28] The Family Consultant was not prepared to recommend that the children spend unsupervised time with the father.[29]
[28] Family Report, 3 May 2010, par 81
[29] Family Report, 3 May 2010, pars 84, 85, 86, 92 and 95.
Ms K was cross examined at the trial. She was more opinionated in her oral evidence than she had been in her Family Report. She expressly recommended that the children should not spend any time with the father, whether supervised or unsupervised, until numerous preconditions had been met.
Firstly, the Family Consultant opined that L should experience a period of successful telephone communication with the father before she should spend any face to face time with him.
Secondly, the Family Consultant said that the father needed to attend and genuinely participate in therapeutic counselling to address the psychological conditions suffered by him, as were diagnosed by the single expert psychiatrist, Dr R.
Thirdly, the Family Consultant considered that the father needed to demonstrate that he had addressed and taken responsibility for the breakdown of his relationship with the children and his perpetration of family violence. The Family Consultant did not articulate in what manner the father would be able to demonstrate his achievement of those ends, although she did recommend that he could participate in a course such as the one described as “Taking Responsibility” conducted by Relationships Australia.
Fourthly, the Family Consultant said that L would need to individually participate in family therapeutic counselling.
Lastly, the Family Consultant asserted that it was necessary for the father to participate in drug and alcohol assessment and counselling, given that he had admitted to an ongoing dependence upon, or addiction to, cannabis.
The Family Consultant was content with the idea of the children having telephone communication with the father, but again, that opinion was subject to compliance with certain conditions. So far as L was concerned, the Family Consultant thought that telephone communication with the father should only happen at L’s discretion. Generally, she thought that the telephone communication should only occur provided the father could contain his emotions and refrain from denigration of the mother.

Evidence of the Single Expert

A report dated 9 February 2010 was prepared by Dr R, psychiatrist. That report was prepared pursuant to an order of the Court made on 7 December 2009 appointing Dr R as the single expert in the proceedings, which order was made consensually following the recommendation of the first Family Consultant.[30]
[30] Exhibit ICL2, par 31
Dr R conferred with the father to assess his psychological condition on 7 January 2010.
The father’s treating general practitioner, Dr H, also saw fit to refer the father to Dr R with a preliminary opinion that the father was suffering from “severe anxiety-depression with probable anger management problem”.[31]
[31] Report of single expert, page 1
The father’s presentation to Dr R was reluctant and resentful.[32] The father had “barely restrained fury” for the situation in which he perceived himself.[33] His presentation then was just as it was several months later when he saw Ms K.[34] The father seemingly had a clear preoccupation with his own predicament, which precluded the focus of his attention upon the best interests of the children. His overriding perception was that he was a victim of external circumstances.[35]
[32] Report of single expert, page 2
[33] Report of single expert, page 4
[34] Family Report, 3 May 2010, par 82
[35] Report of single expert, pages 2, 4 and 5
Dr R diagnosed that the father was suffering from a number of conditions – firstly, a Major Depressive Disorder of moderate to severe degree, with comorbid anxiety, secondly, Antisocial Personality Disorder, and thirdly, cannabis abuse or dependence.[36] It should, however, be noted that Dr R found it difficult to reach a definitive diagnosis.[37] Dr R describes his diagnosis of the Major Depressive Disorder as speculation.[38] Dr R also describes his diagnosis of Antisocial Personality Disorder as a “strong possibility” rather than a “probability”.[39]
[36] Report of single expert, page 5
[37] Report of single expert, page 5
[38] Report of single expert, page 5
[39] Report of single expert, page 5
Although Dr R considered that the contents of documents drawn to his attention suggested that the father had previously been dependent on alcohol, on the basis of the history given by the father, Dr R concluded that a condition of alcohol dependence was in remission.[40]
[40] Report of single expert, page 5
Neither party nor the Independent Children’s Lawyer sought to cross examine Dr R. The contents of his report are therefore unchallenged. In the circumstances, although I accept Dr R’s evidence, I remain mindful of the qualifications imposed by Dr R upon his own diagnoses of the father.
Dr R was of the view that the father’s condition would be appropriately treated by cognitive behaviour therapy and antidepressant medications.[41] Having regard to the demeanour of the father when he presented at his consultation with Dr R in early January 2010, the expert was pessimistic that the father would accept either psychological or pharmacological therapies, and so he was pessimistic about the father’s prognosis.[42]
[41] Report of single expert, page 6
[42] Report of single expert, page 6

Summary of Parenting Law

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child (ss 65DAC, 65DAE), being matters such as education, religion, culture, health, name, and living arrangements (s 4).
However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.

Best Interests of the Children – Primary Considerations

Section 60CC(2)(a)

There is no dispute that the children are closely bonded to the mother. Their relationship with the mother is important, valuable, and significant to them. The recognition of that fact is why the father acknowledges that the children should remain living with the mother.
The relationship between the children and the father is more complicated. Following separation, the children enjoyed a meaningful relationship with him. It was noted by the first Family Consultant in May 2009, some 18 months after separation, that the children enjoyed spending time with the father.[43] The mother agreed in cross examination that that was correct. Photographs tendered in evidence verify the children enjoying happy times in the company of the father.[44] Since then the relationship has become strained, more so for L than G, and the reasons for that have been the subject of debate.
[43] Exhibit ICL1
[44] Exhibit F5
The mother dates the deterioration in the relationship between L and the father to L’s birthday in May 2009. L had not seen the father since a picnic in March 2009,[45] and she was disappointed by the father’s failure to attend her birthday party in May 2009, despite being invited by the mother.[46]
[45] Mother’s affidavit, par 138
[46] Mother’s affidavit, pars 134-137
Thereafter, no time was spent by L with the father. She has only since seen him when they jointly attended an observation session with the second Family Consultant on 16 April 2010, and she was then very apprehensive about being with the father.[47]
[47] Family Report 3 May 2010, pars 74-78
G saw the father with the mother, in the absence of L, in June 2009 when they attended a medical appointment and had lunch together.[48] After that occasion, G did not see the father until the observation session with the second Family Consultant on 16 April 2010. Unlike L, G was very keen to see the father and greeted him warmly.[49] But like L, G also later asked to leave the session.[50] However, I accept that her departure from the session probably occurred for reasons which do not involve a conclusion that G does not wish to spend time with the father. The father said that he had needed to chide G and she may have become upset because of that scolding. That could be so. The Independent Children’s Lawyer suggested that G could simply have taken a cue from her older sister who had shortly beforehand asked to leave. That could also be true. Either way, nothing occurred in the session which suggested to the Family Consultant that G’s initial joy at seeing her father was not authentic.
[48] Mother’s affidavit, pars 109-111
[49] Family Report 3 May 2010, par 75
[50] Family Report 3 May 2010, par 76
The children have undoubtedly been exposed to conflict between the parties, and more particularly aggressive and frightening behaviour exhibited by the father towards the mother. They have clear memories of it.[51] They are each genuinely apprehensive of the father’s propensity for rage.[52] The Family Consultant thought that the children’s views were genuine, reflecting their own experiences of the father, and were not influenced by anyone else.[53] It is clear that L has a greater degree of apprehension than G. L realises that herself,[54] and G is aware that L is more reluctant than her.[55]
[51] Family Report 3 May 2010, pars 56-59, 65-68
[52] Family Report 3 May 2010, pars 61, 67, 68, 71
[53] Family Report 3 May 2010, pars 61, 71
[54] Family Report 3 May 2010, par 60
[55] Family Report 3 May 2010, pars 67, 68
Nevertheless, the underlying uncontentious fact is that the children both previously enjoyed meaningful relationships with the father. The relationships began to deteriorate within the last 12 months, and over that period the children have had no interaction with the father. The absence of interaction has only served to intensify, to differing degrees, the children’s apprehension about reconnecting with the father. The longer it is left the harder it will become to repair the children’s relationship with the father.
The mother submitted that the meaningful relationships between the children and the father were probably capable of recovery through re-introduction of the children spending time with him in circumstances of safety – afforded by experienced supervision. The children would then be able to rediscover that the father was no threat to them, and the mother’s concern that the father might abscond with them would be assuaged. The mother steadfastly maintained that she wanted the children to retain a meaningful relationship with the father, which she regarded as important to their emotional development.
The Independent Children’s Lawyer did not share the mother’s view. She thought that the previous misdeeds of the father demonstrated such an impaired parenting capacity that the children should have no interaction with him at all. Implementation of that proposal would entail the father being shut out of the children’s lives for many years. There is a danger that such an outcome would be emotionally harmful to the children in the mid to long term, as they could ultimately regard themselves as responsible for that result, in the knowledge that the mother considered it important for them to resume their relationship with the father and that the father desired it.
The position of the Independent Children’s Lawyer was seemingly founded primarily upon the deterioration evident in the relationship between L and the father. It is a mistake though not to differentiate the relationship between G and the father, which has not suffered from the same deterioration as that between L and the father. No-one has suggested taking different approaches with the children to their future interaction with the father. All accept that they should be treated uniformly. It would be an error therefore to assume that the uniform approach should be structured by reference to L rather than G. It is plain that G really does desire a relationship with the father,[56] and L admits probably wanting to see the father when she is older.[57]
[56] Family Report 3 May 2010, pars 60, 67, 68, 69
[57] Family Report 3 May 2010, par 60
In my view, the mother has demonstrated considerable foresight and courage in adopting the position she has, particularly in light of the behaviour she has endured from the father. It would have been quite easy for her to have fallen into line with the opinion of the Independent Children’s Lawyer. I agree with the mother that the children’s best interests in the mid to long term will likely be served by the resumption of them spending time with the father, particularly in circumstances where the mother is supportive of that approach and encourages them to do so.
I am satisfied that the children will derive benefit from recovering the meaningful relationship that they formerly each enjoyed with the father. The orders ensure that they will have the opportunity to do so in an environment of safety. The children are likely to be more relaxed about the experience knowing that they will periodically spend time with the father, for relatively short time periods, in the company of one another, and under the supervision of a mature adult.

Section 60CC(2)(b)

There is no evidence that the children have been physically abused by the father in the past. The mother says that she has no fears of that occurring in the future either.
There is however an abundance of evidence proving that the father has intimidated the mother and been physically violent towards her. His behaviour has undoubtedly amounted to “family violence”, as defined within the Act.
There is also no doubt that the children have been exposed to episodes of that family violence, which is psychologically harmful to them. It is primarily the reason why they each now demonstrate apprehension of the father.
Despite the evidence adduced of family violence, the mother has not filed in the proceedings a Form 4 Notice of Child Abuse or Family Violence, as required by the Rules (Rules 2.04A, 2.04B, 2.04D). As a consequence, the provisions of the Act (s 60K) were not invoked to ensure expeditious consideration of the case.
The violent and aggressive past of the father needs to be catalogued and evaluated so that he may be enlightened as to why his relationship with the mother failed, why his relationships with his children deteriorated, and why it is now necessary to impose supervision upon the time spent by the children with him. The analysis of his conduct is not intended to humiliate the father, but rather to set out an objective appraisal of the family dynamics so that he has the opportunity to acquire and retain some insight into the corrosion of his relationships. Through acquisition of insight he may seek and achieve improvement in his parenting capacity.
The relationship between the parties was always volatile. Although the hostility has been more acute in recent times, it extends back to the beginning of the relationship. To the extent that there is disparity between the evidence of the parties on the issue, I prefer the evidence of the mother.
In May 1999 when holidaying in Bali the father kicked a door and repeatedly slapped the mother on the face during an argument.[58]
[58] Mother’s affidavit, pars 11-12
In September 2001 the father argued with the mother. He threw a deodorant receptacle at her and then actually kicked her whilst she was on the ground holding the eldest child, who was then only a baby.[59] The father admitted that incident to the Family Consultant[60] and when being cross examined.
[59] Mother’s affidavit, pars 93-97
[60] Family Report 3 May 2010, par 21
In October 2006 while holidaying in Queensland the father broke items and caused damage in a fit of temper.[61]
[61] Mother’s affidavit, pars 41-45
In November 2007 the father threw some of the household crockery in the bin because the mother had not complied with his direction to clean it up.[62] The father admitted that to be true to the Family Consultant[63] and in cross examination. Even now he regards the fault for the incident to lie with the mother because she disobeyed his command. He fails to appreciate how oppressive and controlling such displays of anger are.
[62] Mother’s affidavit, par 57
[63] Family Report 3 May 2010, par 25
On another occasion in November 2007 the father physically threw the television that the mother had been watching out into the yard because the mother was not listening to him or paying him the respect that he demanded.[64] The father admitted that to be true to the Family Consultant[65] and in cross examination.
[64] Mother’s affidavit, par 58
[65] Family Report 3 May 2010, par 26
On another occasion in November 2007 the father threw a putty knife at the mother.[66] The knife hit her on the back near her shoulder blade and caused pain and a minor injury. The father continued to berate the mother whilst she cried.[67] The father admitted the occurrence of that incident to the Family Consultant[68] and in cross examination.
[66] Mother’s affidavit, par 98
[67] Mother’s affidavit, Annexure JG1, par 9
[68] Family Report 3 May 2010, par 22

On 20 November 2007 the parties physically fought with one another in the main bedroom. The father hit the mother in the face, which caused facial soreness, a bleeding nose, and cut gums.[69] The father admitted in cross examination that the incident occurred, but did not concede the alleged injuries. The father said that the incident occurred because the mother disobeyed his instruction not to sleep in the bed in that room. Again, the father thought that the mother’s disobedience of him justified his behaviour. The mother alleges that the incident was even more insidious than the physical altercation. She says that the incident was precipitated by the father masturbating and ejaculating upon her whilst she slept. The father vehemently denies that. Neither party is corroborated, but I prefer the mother’s version of the incident to the father’s version. Such behaviour on the part of the father is seriously controlling, intended to humiliate the mother as much as gratify himself.
[69] Mother’s affidavit, Annexure JG1, par 10; Exhibit M6 tag C
On 25 November 2007 the father told the mother to leave the matrimonial home otherwise he would kill her.[70] Although the father does not admit using those precise words he does admit that he issued the mother with an ultimatum to leave the house.
[70] Mother’s affidavit, par 99
On 29 November 2007 the father threatened to have the mother raped by other men and then kill everyone who had annoyed him.[71] In cross examination the father denied the context of such conversation, but admitted the argument to which the mother referred. The father explained that his comments related to a break-in that had occurred some time before. It was suggested in evidence that the break-in had occurred in June 2006, but documents show it to have occurred in June 2007.[72] The evidence of the father did not rationally explain the nexus between the event in June 2007 and the threat he made to the mother on 29 November 2007. I did not understand his disjointed explanation. I prefer the mother’s version of the incident.
[71] Mother’s affidavit, Annexure JG1, par 11
[72] Exhibit M6 tag D; Exhibit M4
In December 2007, when the mother attempted to depart the matrimonial home with the children, the father tried to prevent her from doing so. He physically detained the youngest child and barricaded the house, resulting in the police being called.[73] The father concedes the occurrence of such an unpleasant incident, but attributes fault to the mother.[74]
[73] Mother’s affidavit, pars 100-103
[74] Father’s affidavit, par 28; Family Report 3 May 2010, par 23
Following those events in November and December 2007 an apprehended violence order was made against the father in favour of the mother in January 2008 for a period of 12 months.[75] The apprehended violence order apparently brought some reprieve for the mother from the father’s conduct.
[75] Mother’s affidavit, par 66
The father alleges that the mother physically assaulted him in January 2009,[76] but the mother denies any such assault. The father also makes some other allegations of violence against the mother.[77] Even if the mother did assault the father as he alleges, it has no material bearing upon the outcome of the case. The father agrees that the children should live with the mother, and so he implicitly acknowledges that her behaviour on those occasions does not undermine her parenting capacity.
[76] Father’s affidavit, par 36
[77] Family Report 3 May 2010, par 26
On 2 May 2010 the father telephoned the mother to speak to her, at which time the father said to the mother words to the effect of “I’m coming for you […]”.[78] The father admitted that to be true in cross examination, but he did not explain what he meant by the use of those words. It may be that he meant that he was figuratively “coming for” the mother in the litigation, the final hearing which was only weeks away. However, it is readily understandable how the mother may have inferred that he was literally “coming for” her physically. Either way it was a threat, and it was entirely reprehensible and unwarranted. The father was impelled to admit in cross examination that the mother would likely have been intimidated. That was the only motive the father could rationally have had for making the call and using those words.
[78] Mother’s affidavit, pars 160-165
On 10 May 2010, after an argument over the telephone, the father telephoned the mother back and threatened that he would be around at her home in “3 fucking seconds” if she spoke to him again in the manner that he perceived to be disrespectful.[79]
[79] Mother’s affidavit, pars 172-178
The father’s behaviour towards the mother, involving controlling violence and virulent threats, over a protracted period has been simply appalling. Although the father has endured numerous other stressors in his life, it is no justification for the way in which he has treated the mother. The father appears to have irrationally attributed all of his misfortune to the mother. He blames her for being behind his bashing in 2007,[80] the isolation of their family from friends,[81] him losing a lucrative work contract,[82] causing the liquidation of his business,[83] stealing from his home and business,[84] him being penalised by police for traffic infringements,[85] and refusing to let the children see him following separation.[86] I conclude that the father has lost perspective and the capacity for objectivity. He has been overwhelmed by numerous unfortunate incidents in his life and his simplistic coping mechanism has been unbridled rage.
[80] Family Report 3 May 2010, par 15
[81] Family Report 3 May 2010, par 19
[82] Family Report 3 May 2010, par 24
[83] Father’s affidavit, par 22
[84] Father’s affidavit, par 35
[85] Family Report 3 May 2010, par 29
[86] Family Report 3 May 2010, pars 24, 30, 38
Although I accept that the father has made the threats discussed, I am not persuaded that he is likely to act on them. As the father poignantly said in evidence, he has had plenty of time since separation within which to cause harm to the mother or abscond with the children if that was his genuine intention. The threats are more probably his way of instilling fear in the mother in an attempt to exert control over her and regain control of the family that he feels he has lost.
Having carefully observed the father during the trial I am drawn to the conclusion that he is now coming to recognise that the mother is resolved not to be intimidated and not be controlled by him. His demeanour reflected a sense of resignation about the mother’s independence and the need for him to be more respectful of her.
Although there is now room for cautious optimism about improvement in the father’s behaviour, the past cannot be forgotten. The children have certainly not forgotten. The evidence of pervasive family violence obliges the Court to take steps to attenuate the risk of the children’s exposure to further family violence. That can only be achieved by ensuring that the parties are not brought into contact with one another, and that the time the children spend with the father is properly supervised.

Best Interests of the Children – Additional Considerations

Section 60CC(3)(a)

L is plainly reluctant to spend time and communicate with the father. She said so to the Family Consultant,[87] and her behaviour in the observation session on 16 April 2010 corroborated her comments.[88]
[87] Family Report 3 May 2010, pars 56, 59, 60, 74, 78
[88] Family Report 3 May 2010, pars 75-76
It is also clear, though, that L’s comments are not completely reliable. She told the Family Consultant that she had felt uncomfortable about seeing the father following her parents’ separation,[89] which occurred in late 2007, whereas it is known that she enjoyed the time that she spent with the father right up until May 2009.[90] Her representations must therefore be regarded with some caution.
[89] Family Report 3 May 2010, par 57
[90] Exhibit ICL1
The Family Consultant opined that L’s views should be given significant weight.[91] I do not agree. They are deserving of some weight, but not significant weight. L is barely 9 years of age. She does not have the maturity to understand the significance of the views that she has expressed. I do not accept that she has a proper appreciation of the gravity of the consequences should the Court endorse and enforce her statements that she should have no relationship with her father.
[91] Family Report 3 May 2010, par 89
I accept the Family Consultant’s evidence that L’s views are her own, based on her own experiences of the father, and that she has not been influenced by the mother to hold those opinions.[92] However, that fact does not translate to the views of a 9 year old child being authentic, reliable, or appropriate.
[92] Family Report 3 May 2010, pars 61, 89
The evidence justifies an inference that L has been frightened by the father’s past behaviour, that she is apprehensive of him for that reason, and that she does not want the security of her primary relationship with the mother disturbed. I accept the opinion of the mother that, provided L is re-assured about those concerns, and provided her re-introduction to the father is managed in safe and controlled conditions, it is likely that L will be able to recover and enjoy her relationship with the father. With the mother’s intended encouragement that is even more likely.
As already mentioned, the relationship between G and the father has not suffered from the same deterioration as the relationship between L and the father. She is more outgoing and confident than L.[93] She does not understand why she has not been seeing the father.[94] She expressed a wish to see him.[95] She acknowledges that she loves her father.[96] Nevertheless, she is a little wary of him because of how she has observed him to behave.[97]
[93] Family Report 3 May 2010, pars 54, 63
[94] Family Report 3 May 2010, par 65
[95] Family Report 3 May 2010, par 67
[96] Family Report 3 May 2010, par 67
[97] Family Report 3 May 2010, pars 65-67
G expressed an ambivalent view about seeing the father,[98] but her behaviour in the observation session on 16 April 2010 indicated her real desire for interaction with him. She greeted the father with excitement and told him she loved him, without such a comment being solicited.[99] Although she later asked to leave the observation session, the possible motives for that have already been discussed in these reasons.
[98] Family Report 3 May 2010, pars 69, 88
[99] Family Report 3 May 2010, par 75
I am satisfied that G does have a genuine wish to spend time and communicate with the father. The Family Consultant considers that G’s views should be “considered in a broader context of what is in her best interests”.[100] I agree. In my view, the same applies for L.
[100] Family Report 3 May 2010, par 71
I do not accept without qualification the Family Consultant’s speculation that G may have unrealistic expectations about the father.[101] That could be so, but that is too conjectural a foundation for a decision to excise the father from her life.
[101] Family Report 3 May 2010, par 88
I accept the Family Consultant’s view that for G (and for that matter L) to see the father their safety must be guaranteed. The Family Consultant felt that only supervised time could deliver such an outcome, and since the father had consistently rejected such an arrangement, she could not see how the safety of the children could be assured so as to permit them to spend time with him.[102] The material change that occurred during the trial was that the father came to realise that supervision of the children’s time with him was the only viable option, and so he acceded to the need for such supervision to be imposed.
[102] Family Report 3 May 2010, par 90
The expressed views of the children are therefore germane to the manner in which they will spend time and communicate with the father, but are not influential in the determination of the issue about whether they spend time and communicate with him at all.

Section 60CC(3)(b)

The nature of the children’s relationships with each of the parties has already been discussed as a primary consideration in the context of s 60CC(2)(a) of the Act. There is nothing to add.
The children enjoy warm relationships with both the maternal and paternal grandparents.[103] Credit is due to the mother for facilitating the continuing relationship between the children and the extended paternal family despite the breakdown in the relationship between herself and the father.
[103] Family Report 3 May 2010, par 9

Section 60CC(3)(c)

The father believed that the mother aligned the children against him, and that that is the explanation for why the children have demonstrated any reluctance to spend time with him. The father is mistaken.
There are numerous examples to demonstrate why the mother has not manufactured the children’s apprehension of the father. Some of them may be summarised as follows.
The mother has facilitated and encouraged a continuing relationship between the children and members of the extended paternal family. She would not likely have done that if she was deliberately trying to erase the paternal influence in the children’s lives.
Since separation, the mother has encouraged a continuing relationship between the children and the father. The father admits that the relationship between the parties was amicable and that the family still got together almost every day for some time following separation, including for meals.[104] The mother took the children to see the father on Christmas Day in 2007.[105] The family stayed together on New Years Eve in 2007.[106] In May 2008 the family went on an outing to Nelson Bay.[107] On another later occasion the family went out for dinner to a club.[108] In November 2008 the family was still socialising together.[109] In March 2009 the mother invited the father to a picnic with the children a Reserve.[110] In May 2009 the mother invited the father to attend a birthday party she was holding for the child L.[111] In June 2009 the mother invited the father to attend a medical appointment and then lunch with her and the child G.[112] In May 2010 the mother had the child L telephone the father on her birthday. The mother continues to arrange for the children to send photographs and cards to the father on his birthday and Father’s Day. Those are a selection of instances that occurred across a period of more than two years. That is not conduct which is consistent with a mother trying to impair the relationship between children and their father.
[104] Father’s affidavit, pars 23, 27
[105] Mother’s affidavit, par 127
[106] Mother’s affidavit, par 130
[107] Father’s affidavit, par 30
[108] Father’s affidavit, par 37
[109] Mother’s affidavit, par 132
[110] Father’s affidavit, par 39; Mother’s affidavit, par 138
[111] Mother’s affidavit, pars 134-137
[112] Mother’s affidavit, pars 109-111
I agree with the opinion of the Family Consultant that the mother has not influenced the children’s views.[113] I am satisfied that the mother has a willingness and ability to facilitate and encourage the relationship between the children and the father, provided their safety is assured.
[113] Family Report 3 May 2010, pars 61, 71
The father has been scathing in his criticisms of the mother. On the evidence adduced, his criticism is entirely unfounded. He told the Family Consultant with some vehemence that he hated the mother,[114] but in cross examination said that was not entirely accurate. Although the father’s opinions may now have moderated, there remains a concern that he will denigrate, or make derogatory comments about, the mother in the presence of the children. That is another reason for the need for the time spent by the children to be supervised. The supervision will likely curtail the father’s propensity to speak negatively of the mother. The father’s anger and frustration arises from his perception that he has been marginalised in the lives of the children and that the mother is responsible for that. Despite the virulence of his animosity towards the mother, the father does not intend to weaken the relationship between the children and the mother. He recognises that she is a capable parent and that the children should remain living with her.
[114] Family Report 3 May 2010, par 30

Section 60CC(3)(d)

The children’s residential arrangements are not changed.
The orders require the children to resume their interaction with the father, which had been occurring consensually up until some 12 months ago. I am not satisfied on the evidence adduced that resumption of their interaction with the father in a supervised setting is likely to have a deleterious effect upon them. I expect that the children’s existing apprehension will persist for some time, but will subside.
The children still infrequently communicate with the father by telephone. The orders will require continuation of that communication on a more regulated basis. That arrangement meets with the consent of both parties and reflects the evidence of the Family Consultant. I am not satisfied that the children will be disturbed by that level of communication.

Section 60CC(3)(e)

The parties both live within the Newcastle environs. There is no practical difficulty in bringing the children together with the father. There will be expense involved in having the children’s time with the father supervised, but the father said that he is willing and able to meet that expense.
There is no practical difficulty or expense in implementing the telephone communication.

Section 60CC(3)(f)

There is no doubt about the capacity of the mother to provide for all of the children’s physical, intellectual, and emotional needs.
The father is an intelligent man. He can cater to the children’s intellectual needs.
The father has capably provided for the children’s physical needs in the past. He has been unemployed and in receipt of a Centrelink benefit for some time, but subject to his present modest financial circumstances, he can still provide for the children’s physical needs.
The litigation has focussed upon the impairment of the father’s capacity to provide for the children’s emotional needs. The father’s sense of frustration with his own predicament has preoccupied him and impaired his ability to appreciate the adverse effects that his behaviour has had upon the children’s emotional security. They have been disturbed by his intense anger and volatility. Their perceptions are not warped because the father’s hostile behaviour has also been evident to the Family Consultants, the expert psychiatrist, and the Court.
The father’s psychological condition precludes him from affording primacy to the children’s emotional needs, at least for the immediate future.

Section 60CC(3)(g)

The parties have both been heavy users of cannabis.[115] Orders were made by the Court on 7 December 2009 requiring the parties’ submission to urinalysis.[116]
[115] Father’s affidavit, par 15
[116] Order 8
The mother encountered difficulty in discontinuing her use of the drug, but managed to do so by 26 January 2010 with the assistance of a psychologist.[117] She submitted to urinalysis on 13 April 2010 which proved negative for cannabis.[118] There was a low level of creatinine noted, which is suggestive of a diluted urine sample. The mother said that she habitually drinks large amounts of water and the issue of the creatinine level was not pursued. Consequently, the available evidence is that she tested negative to cannabis in April 2010.
[117] Mother’s affidavit, pars 83-85
[118] Exhibit M5
By comparison, the father remains heavily dependent upon cannabis. By his own admission, he still smokes large amounts – between 5-9 cones per day. His urinalysis report dated 31 May 2010 discloses an elevated positive result for cannabis,[119] which is consistent with his admission of past and current use of the drug. The expert psychiatrist’s diagnosis of drug dependence seems eminently reasonable and accurate.
[119] Exhibit ICL3

No-one has suggested that the mother’s past use of cannabis materially impaired her capacity to parent the children. Conversely, it has been contended that the father’s parenting capacity is impaired by his continuing daily use of large amounts of cannabis. That may be so if the children are to spend prolonged periods with him, but under the orders made, they will not spend time with him other than under supervised conditions. The children will not therefore be at unacceptable risk of being in the unassisted care of an intoxicated parent.
There are no other features about the maturity, sex, lifestyle, or background of the parties or the children that are salient to the case.

Section 60CC(3)(h)

Neither of the parties identify themselves or the children as Indigenous Australian.

Section 60CC(3)(i)

The father has failed to demonstrate a proper attitude to the children and the responsibilities of parenthood for reasons already elaborated. There is no need to repeat those findings at length.
The commission by the father of family violence upon and towards the mother has occurred in the presence or hearing of the children. That demonstrates a dreadful lack of insight about the harm caused to their children.
The father has also not taken opportunities to participate in the children’s lives when they have arisen, such as attending G’s first day at school in February 2008,[120] or L’s birthday party in May 2009,[121] or sending them birthday and Christmas cards and presents.
[120] Mother’s affidavit, par 71
[121] Mother’s affidavit, pars 134-137
The only reason the children have not spent time with the father over the last 12 months is because the father has refused to submit to supervision of that time. He has repeated that refusal to the first Family Consultant,[122] the second Family Consultant,[123] and the Court.[124] Although he is resentful at having missed out on that time with the children, his own obstinacy has been responsible for that.
[122] Exhibits ICL1
[123] Family Report 3 May 2010, pars 5, 37, 44
[124] Order 3 made 31 July 2009; Orders made 7 December 2009
I do not find that the father intends emotional harm to his children by his intermittent involvement in their lives, but that is nevertheless the consequence of his decisions.

Section 60CC(3)(j)

The issue of family violence has already been addressed as a primary consideration under s 60CC(2)(b) of the Act. There is nothing to add.

Section 60CC(3)(k)

There is no current family violence order in existence that relates to either party or the children. The family violence order that was procured for the mother against the father in January 2008 has since expired.[125]
[125] Mother’s affidavit, par 66

Section 60CC(3)(l)

The parenting orders now made meet with the consent of the parties, albeit not the Independent Children’s Lawyer.
The parenting orders are made on an interim basis. Although the orders may stimulate further litigation in the immediate future, I conclude that is unlikely because the orders will be re-considered when the matter comes back before the Court in several months and an update Family Report is available. The parties are unlikely to either appeal or contravene orders to which they consent, and provided the parties ensure that the orders are implemented successfully, the Independent Children’s Lawyer is likely to abide by them.

Section 60CC(3)(m)

There are no other facts or circumstances relevant to the determination of whether, and in what circumstances, the children should spend time with the father, and the allocation of parental responsibility.

Parental Responsibility

The findings about the occurrence of family violence mean that the presumption of equal shared parental responsibility does not apply. In any event, the best interests of the children demand an outcome other than equal shared parental responsibility. The parties are simply unable to communicate effectively.
The Family Consultant recommended against the allocation of equal shared parental responsibility, and considered that parental responsibility should be allocated to the mother.[126] The mother sought the allocation of parental responsibility solely to her, and that result was supported by the Independent Children’s Lawyer, and ultimately even the father. Parental responsibility for the children is therefore allocated solely to the mother.
[126] Family Report 3 May 2010, par 94

Living, Spending Time, and Communications Arrangements

Given that there is no order allocating equal shared parental responsibility, there is no obligation cast upon the Court to consider making orders providing for the children to spend equal time in the household of each parent, or alternatively, substantial and significant time in the household of the non-residential parent. The outcome depends upon the best interests of the children and the practicability of alternate arrangements.
The Family Consultant recommends that the children live with the mother.[127] That is the mother’s wish. The father and the Independent Children’s Lawyer both agreed. In the absence of controversy, an order will be made providing for the children to live with the mother.
[127] Family Report 3 May 2010, par 94
The vexed question in this case concerns the manner in which the children might, if at all, spend time and communicate with the father.
There was a recent perceptible change in the attitude of the father, which change bears significantly upon that question. It seems that the attitudinal change began at about the time that the father received and read the Family Report of the second Family Consultant. After the father had read that report he contacted the mother on 14 May 2010 and indicated an intention to abandon any further dispute about the children. The mother reported the content of that conversation to the Family Consultant by email.[128] The mother perceived the father’s demeanour to be sad and upset rather than angry.
[128] Exhibit M3
The father did not disengage from the proceedings, as he had intimated to the mother, but the father now has a different perspective. Since the times of his interviews by the Family Consultants and the expert psychiatrist, the father has modified his approach to the problem in material ways. He is now accepting of the need for supervision of the time spent by the children with him, and he is amenable to therapeutic counselling to address his precarious psychological condition.
Over the last 6 months the father has been consulting with his general practitioner, Dr H, who has recently prescribed him new medication. The father says that he is now experiencing relief not experienced by him with former medications, and the change in the father’s demeanour is palpable. The father even went so far as to acknowledge that his treating general practitioner may be assisted by seeing the report of the expert psychiatrist in facilitating his treatment, and by granting authorisation to the mother’s solicitor to speak with his treating general practitioner to independently monitor his progress.
In pursuit of that permission, the mother’s solicitor did speak to Dr H and the doctor was then called as a witness in the mother’s case with the father’s consent. Dr H confirmed the improvement in the father’s emotional condition over time. He confirmed that whilst the father’s admitted use of cannabis continues at an injurious level, his use of cannabis does not complicate use of the medication he is currently prescribed. The dosage of the father’s currently prescribed medication is quite low and is capable of variation to find a long-term therapeutic range for the father. In light of the psychiatrist’s evidence, summarised for the doctor, he considered that cognitive behavioural therapy for the father would be beneficial in addition to the current medication.
The father also credibly said that he wants his children to be happy. That was an important concession on several levels, because it signified his acknowledgment that the children were not presently as happy as they should be, and it represented his acceptance that their happiness was more important than his own in the outcome of these proceedings. He said that he was aware that the children were having difficulty coping with the conflict between himself and the mother, of which they are obviously aware, demonstrating a level of insight not previously apparent.
The father also believably said on several occasions during his cross examination that he would abide the decision and orders made by the Court. In the past the father has railed against any order that has not conformed to his own wishes. I accept that the father is probably now reconciled to the view that the Court is the ultimate arbiter in the dispute and that his personal opinions must be subjugated to the Court’s decision.
The mother’s counsel also submitted that the mother had observed the father during the trial and considered that his behaviour and attitude showed marked improvement. I accept counsel’s submission that the mother is probably better placed than anyone to offer such an appraisal.
Those changes in the father’s position had not been apparent to either the Family Consultants or the expert psychiatrist. Consequently, the Court is now armed with important evidence of which they were deprived, and which legitimately permits the Court to reach conclusions that depart from those of the Family Consultants and expert psychiatrist. Their findings and conclusions carry less weight than they otherwise might, even though they were either largely or completely unchallenged.
The recommended pre-conditions imposed by the second Family Consultant upon the children spending time with the father represent an unrealistically high parental and therapeutic standard. It represents an ideal situation, but not a realistic one. Given that the Family Consultant recognised that the absence of interaction between the children and father over the last 12 months would likely be a factor in the shift in the children’s attitudes about the father, then reversing the absence of such interaction as swiftly as possible is the preferred course if their relationships with him are to be rejuvenated.
The mother agreed that the lack of time spent between the children and the father, and the lack of communication between them, was probably influential in the deterioration in the relationships. The mother said that G still loves the father and spoke fondly only weeks ago about having playfully wrestled with him in the past. Although she anticipated that L might be oppositional to re-introduction to the father, the mother intended to work to overcome that. She considered that both children would follow her encouragement and instructions.
The mother was content for the children to speak with the father on the telephone, provided the father was respectful of her and kept himself in control.
Even in the face of the evidence given by the Family Consultant, the mother said that she would always want the children to have some form of contact with the father. She is aware that the father loves them, and believes that the father has much to offer them as a parent when he is well. The need for the safeguards proposed by the mother was borne of her concern that the father has been unwell.
Of course, a finding on the evidence that the father has recently adjusted his attitudes must be distinguished from a finding that the father has redeemed himself on a permanent basis. The evidence only permits the Court to now be satisfied that the father’s improvement is sufficiently advanced to warrant the children’s re-introduction to him. The benefits to the children in the recovery of their relationships with him can now be cautiously said to outweigh any risk that might present.
As has been mentioned, neither the mother nor the Independent Children’s Lawyer has suggested that the father presents any risk of physical abuse to the children. The contended risk has always been a psychological one, through exposure to the father’s errant behaviour and vociferous denigration of the mother. That risk can be satisfactorily managed by the imposition of supervision upon the time spent by the children with the father.
The mother submitted that any risk presented by the father to the children in a supervised setting was not an unacceptably high risk. She regards the existence of supervision as a suitable filter to regulate the father’s conduct in the presence of the children. The mother disavowed the Independent Children’s Lawyer’s position that the situation was so bleak that not even supervision could introduce a sufficient degree of safety for the children’s emotional welfare. I am in agreement with the mother.
The orders providing for the time spent by the children with the father and their communication with him by telephone (Orders 4-6) are not in identical terms to those proposed by the mother[129] and agreed by the father. They do however achieve a similar outcome. The differences are slight.
[129] Exhibit M10
The risk posed by the father can also be abated by ensuring that the father:
a)Participates in a post-separation parenting program (hence Order 11),
b)Continues his medical treatment with his general practitioner (hence Order 12), and
c)Seeks out therapeutic counselling with a psychologist (hence Order 13), to whom he can be referred by his general practitioner, consistently with the evidence of Drs R and H.
Provided that the father’s condition continues to improve, and provided the children respond favourably to their re-introduction to him, the orders that provide for the children to spend time and communicate with the father can be reviewed. Such a review could cater to either expansion or erasure of the orders providing for the children to spend time and communicate with the father. For that reason the parenting orders have been made on an interim basis, so that the success of the temporary arrangement may be monitored and assessed.
Although the mother petitioned the Court to make the orders providing for supervised time a permanent arrangement, I conclude that that would be an error for a number of reasons – I remain alive to the expressed concerns of the Family Consultant, the father’s path to redemption is only in its early stages, and the making of orders for supervised time on a permanent basis is generally undesirable (see Moose v Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40-41]). The preferable course is to impose a finite period on the supervision, followed by a review (see W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at [164]). That is the course I intend to take in this case.
In circumstances where the supervised time between the children and father is to be a temporary arrangement, the father countenanced a trial period of 12 months, whereas the mother thought a period of 6 months more appropriate. I generally agree with the mother. If the arrangement proves to be problematic then a shorter trial period is preferable to a longer one. However, the trial period needs to be of sufficient duration to permit the children to rediscover their enjoyment of their relationships with the father, and for the father’s therapy to progress to a stage where predictions about the future can be more reliably made.
The interim orders will prevail for a period of slightly in excess of 6 months. The Family Consultant will be required to consult with the parties and the children to prepare an updated Family Report at a time proximate to the end of that trial period and in advance of the next return date (hence Orders 14-15). If the parties and the Independent Children’s Lawyer are then in agreement about permanent parenting arrangements, final consent orders may then be made. If any aspects of the matter remain contentious a further hearing may be appointed to address those residual issues in light of fresh evidence.
The Independent Children’s Lawyer submitted for the making of final orders and was against any interim regime. Her opposition was based exclusively, or at least primarily, upon the evidence of the second Family Consultant. For reasons already explained, I do not repose as much weight in that evidence as the Independent Children’s Lawyer.
No order is made requiring the father to undertake separate counselling to overcome his illicit use of cannabis, since there is no evidence that his continuing use of the drug will adversely affect the children during the supervised time that they spend with him pursuant to the orders. It would obviously be desirable for the father to free himself of his dependence upon an illegal drug, for the sake of his own health and to avoid persistent criminal activity. However, apart from parenting and injunctive orders that are made to promote the best interests of the children, it is not for the Court to take a patrician approach to the personal lives of the parties.
Perhaps the father’s drug use is an issue that will be addressed as part of the therapeutic counselling that he undertakes pursuant to Order 13. If it is not, and the father’s drug use continues, then it will likely be an issue that needs to be addressed should the father subsequently seek final parenting orders which either expand the time that the children spend with him and/or dispenses with the need for supervision. It would therefore be in the interests of the father to address the problem voluntarily, sooner rather than later.
Orders 7-10 impose restrictions and obligations upon the parties which are either the subject of implicit agreement or which cannot be the subject of sensible dispute.
For those reasons the orders set out at the beginning of this judgment are in the best interests of the children.

I certify that the preceding one hundred and seventy four (174) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate:

Date: 2 July 2010

[2010] FamCA 534

2 July 2010

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